By Chris Tobias

On Monday, August 8, the Biden administration announced it would wind down the use of a controversial immigration policy known as Remain in Mexico, which denies US entry to migrants seeking asylum while their claims are pending. A federal court removed a final procedural hurdle preventing it from doing so. The court said in a 5-4 ruling that the Biden administration acted properly in seeking to end the “Remain in Mexico” policy.

The timing had been questioned since the US Supreme Court ruling on June 30 that the Biden administration could end the policy. Homeland security officials had been mostly quiet, explaining that they had to wait for the court to certify the ruling and for a Trump-appointed judge, Matthew Kacsmaryk, in Amarillo, Texas, to lift his injunction. Last week, the Supreme Court certified its ruling, and opponents of the policy had been increasingly outspoken about the Biden administration’s reticence on Remain in Mexico, calling for an immediate end to it.

DHS Statement
We welcome the US District Court’s decision, which follows the US Supreme Court’s June 30 decision, to lift the injunction that required DHS to reimplement the Migrant Protection Protocols (MPP) in good faith. DHS is committed to ending the court-ordered implementation of MPP in a quick and orderly manner. Individuals are no longer newly enrolled in MPP, and individuals currently in MPP in Mexico will be disenrolled when they return for their next court date. Individuals disenrolled from MPP will continue their removal proceedings in the United States.

As Secretary Mayorkas has said, MPP has endemic flaws, imposes unjustifiable human costs, and pulls resources and personnel away from other priority efforts to secure our border. The Department will provide additional information in the coming days. MPP enrollees should follow the directions on their court documents and tear sheets to appear for their scheduled court date as required. DHS continues to enforce our nation’s immigration and public health laws, including the Centers for Disease Control and Prevention’s Title 42 public health order as required by court order. Individuals encountered at the Southwest Border who cannot establish a legal basis to remain in the United States will be removed or expelled.

Why is the Remain in Mexico policy harmful? What are the concerns with this policy?
Making vulnerable people wait to access asylum protection and due process in Mexico is concerning for several reasons. First, this policy leaves many vulnerable asylum seekers in dangerous and unsafe circumstances, including those in which their lives may be at risk, they may not be able to access health services and humanitarian aid, and they may face deportation.

Second, making asylum seekers wait in Mexico to access protection is profoundly concerning from a due process and access to justice perspective. This policy impacts those who have shown that they have a credible fear of persecution; nonetheless, it will make them wait in Mexico without access to family, legal, or social support. Undoubtedly, this will make it more difficult for those subject to the policy to assert their asylum claims successfully and risk retraumatizing them in the unsafe conditions in which they are forced to wait.

Background
Approximately 70,000 migrants were subject to the policy, known officially as Migrant Protection Protocols, from when then President Donald Trump introduced it in January 2019 until Joe Biden suspended it on his first day in office in January 2021, fulfilling a campaign promise. Migrants were allowed to return to the United States to pursue their cases during the early months of Biden’s presidency, often from squalid, dangerous, ad hoc camps or strained shelter accommodation in towns a short distance over the border into Mexico. Then it was reinstated. Migrants fleeing to the US were again halted at the border and made to stay out of the US. This, combined with a policy of regular expulsions at the border under a heavily criticized pandemic rule seemingly to curb Covid-19, known as Title 42, has driven thousands to make unauthorized crossings, often repeatedly. The results were deadly for some – including surrendering to failed smuggling dealings, the twirling waters of the Rio Grande in Texas, or the desert further west. From December to June, almost 6,000 persons were subject to the policy. Nicaraguans account for the most significant number, with others from Cuba, Colombia, and Venezuela.

Trump had made the policy a centerpiece of his border enforcement. Immigration advocates decried the policy calling it inhumane for exposing migrants to extreme violence in Mexico and making access to attorneys far more difficult.

  asylum, asylum seekers, Biden administration, Mexico, migrants, President Joe Biden, trump